)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1587

CITATION : R. v. Rose, 2013 ONSC 1587 COURT FILE NO.: 3-442/10 DATE: 20130320 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – AUNDRE ROSE Defendant )) )) )) )) ) ) Eadit Rokach , for the Crown Ariel Herscovitch , for the Defendant HEARD: March 11, 2013 SPIES J. REASONS FOR SENTENCE Overview [ 1 ] On December 4, 2012, following a trial before me, I convicted Mr. Rose as a party to one count of robbery while armed with a handgun contrary to

section 344 of the Criminal Code . I found that he had aided and abetted three accomplices in the robbery of Laxson Moyo and that he knew one of his accomplices would be and was armed with a firearm. He is now before me for sentencing. The Facts (

a) Circumstances of the Offence [ 2 ] The details of the offence are set out in my Reasons for Judgment; R. v. Rose , 2012 ONSC 6751 . Just after midnight on February 18, 2009, Mr. Moyo was robbed of his car keys when he returned to his apartment. He was in the company of Charlene Webster who was part of the robbery plan and was approached in the parking lot by three men who took his car keys, beat him and intended to rob him. They left the scene without taking anything. I had a reasonable doubt about whether or not Mr.

Rose was one of those men but I found he was one of the people who began to plan this robbery a week or so earlier when he and his girlfriend, Ms. Webster, and two friends; Mr. James and Mr. Nwogu, discussed a plan to rob men using Ms. Webster as bait. [ 3 ] Mr. Rose was an integral part of the general planning discussion for the robbery. Ms. Webster testified how she did not want to do this and that Mr. Rose directed her to engage with Mr. Moyo, lead him to believe that she was interested in him and go on a date with him. She testified that she only did this because Mr. Rose told her to.

I found that, save for the fact Mr. Rose may not have made it in time to participate in this robbery, the robbery otherwise occurred as planned in that Mr. Moyo became exposed to the robbery after going out with Ms. Webster on a date. There was no evidence that part of the plan was that the men would have their faces masked. However, Mr. Nwogu testified that they planned to bring guns. He testified that there were two; one in the hands of Mr. James and the other in the hands of a third person he knew only as K.G. (

b) Impact on Mr. Moyo [ 4 ] Mr. Moyo testified that as he started walking towards his building, one of the robbers put a gun to his stomach, took his car keys and pushed him towards his car. A second and third robber approached them and two of the robbers tried to push him into the backseat of his car. He started screaming and fighting them. Two of the robbers were beating Mr. Moyo on his head and trying to shove him into the car. One robber used a gun and hit him twice on the back of his head. Mr.

Moyo said that he was getting so many blows as he was facing the car that he could not tell if the other robber was also hitting him. Mr. Moyo fell to the ground when he was being pushed into the car and both men kicked his stomach and back to get him up. At trial Mr. Moyo testified that he suffered bruises from the attack that were not serious and he was in pain for a couple of days. [ 5 ] Mr. Moyo provided a written victim impact statement for sentencing. In terms of emotional loss he states that the robbery has made him change the way he looks at his surroundings and the people around him.

He has distrust in new people and has had sleepless nights and dreams about a gun being pointed to his head. He is fearful of answering his door and does not want to be a victim

again. The robbery has had a financial impact as well as he felt that he had to move his family to a new place where he installed a security system. In addition, he has lost income from coming to court. (

c) Circumstances of Mr. Rose [ 6 ] A Pre-Sentence Report was neither requested nor ordered. Mr. Rose is 27 years old. He has a criminal record. He was convicted in 2005 of armed robbery and the use of an imitation firearm during the commission of an offence. He received 364 days with a credit of 24 days pre-sentence custody and probation for three years on the armed robbery charge with a one year consecutive sentence on the use of the imitation firearm. He was paroled on those charges on January 6, 2006. There was then a period where Mr.

Rose had no convictions until October 2012 when he was convicted by Justice Harvison Young of this court, of robbery with an imitation firearm and sentenced to six and one half years in prison. This robbery was a home invasion in Thorncliffe Park (the “Thorncliffe robbery”) and took place on February 24, 2009; six days after the Moyo robbery. As I will come to, the fact the Moyo robbery took place before the Thorncliffe robbery is a factor on this sentencing. [ 7 ] Mr. Rose has virtually all of his high school credits save one Grade 12 credit. He would like to take this credit when he is in the penitentiary. Mr.

Rose also spent one year in a college business administration program. I understand that he was earning a living by coaching basketball for several years and, as I will come to, he also mentored youth as a volunteer. [ 8 ] Mr. Rose is not a citizen of Canada and I am advised that he will be deported to Jamaica after he serves his sentence. He hopes to complete his college degree there. Mr. Rose has a six year old daughter and he has been with the mother of his child (not Ms. Webster) for eight and a half years.

He saw a lot of his daughter before he was convicted by Harvison Young J. as he was on house arrest while on bail. [ 9 ] Mr. Rose advised me that he would like to apologize to Mr. Moyo and admitted that there was no excuse for his conduct which he characterized as “youthful mentality at the time”. That, in my view, is an extreme understatement. Mr. Rose said he is “extremely remorseful”. He talked about the impact this event has had on his young daughter because since he has been incarcerated he is not there physically for her every day. [ 10 ] Fifteen letters of support were filed on behalf of Mr.

Rose which all speak in glowing terms of his abilities and personality. These letters describe a man who seems incapable of committing the crimes Mr. Rose has been convicted of. It appears that certainly at the time of the Moyo and Thorncliffe robberies, Mr. Rose was living a double life. As stated by one of the authors of letters filed in support of Mr. Rose, he does not fit the profile commonly encountered in the circumstances of his case. [ 11 ] I

summary of the letters is as follows:

a) A letter from a criminal defence lawyer who knows Mr. Rose and his immediate family as a result of mutual acquaintances in the music industry states that Mr. Rose comes from a background of “strong moral values within a very healthy family environment”. His letter describes Mr. Rose’s involvement as a volunteer in the production of a music video involving young people.

b) A number of letters describe Mr. Rose’s involvement as a volunteer with a project with inner city youth of Chicago. The objective of this project was to take kids from disadvantaged communities that had dreams of one day becoming a singer, rapper or producer and let their words be heard. When Mr. Rose was under house arrest he began working on the project with the youth coming to his home. He mentored them and in the opinion of the President of the organization, some of these youth would have returned to Chicago and back into a life of crime but for his guidance. She believes Mr.

Rose has the desire to be productive in the community and to help find ways so that other young people will not make mistakes in their lives that could cost them their future. This project had the backing of the head of the Crime Commission of Chicago as well as the Mayor of Chicago and letters from both the Mayor and the Deputy Director of the Commission speaking highly of this project were also filed.

c) A letter from the Club President of the Advantage Basketball Club speaks to Mr. Rose’s skill at coaching basketball and the fact that Mr. Rose has volunteered his time to help at free basketball camps which help inner city youth primarily from low income families in the Scarborough area. Mr. Rose was also involved in the Big Brother program where he served as a mentor. In his opinion Mr. Rose has a gift for working with youth.

d) Stevie Stephens, Mr. Rose’s older brother, provided a letter. He had been his surety. He is a musician, recording artist and songwriter. In his opinion Mr. Rose is a very talented artist and songwriter and he states that Mr. Rose has been involved in various projects that he has been part of including inspirational music for youth to help them seek a better path in life.

e) A letter from one of Mr. Rose’s cousins that grew up with him in the same household, states that Mr. Rose has made a conscious effort to eliminate all things negative that had an impact on his life and is using them as a lesson to bring positive influence in his life. She states that Mr. Rose has taken up music as a form of relief mechanism to write about his experiences. In her opinion he is very talented at writing and formatting songs with positive messages.

f) A good friend and colleague of Mr. Rose who produces digital media states that Mr. Rose has recently collaborated on a few music videos which have aired on MuchMusic television and are being well received on YouTube. He states that Mr. Rose has also hosted a number of community events in support of local musicians.

g) A good friend of Mr. Rose’s mother describes Mr. Rose as a kind-hearted, spirited young man who is a delight to be around. She states that he shows devotion to his family and in particular his mother.

h) Another friend of Mr. Rose says he is one of the most upbeat positive men that she has ever met and speaks of the music he is writing. She knows his large family provides a very close loving support system and states the family has high standards and morals and is very respectable.

i) A new friend of Mr. Rose’s describes him as a good person who is kind and generous and has a strong sense of responsibility.

Legal Parameters [12] It is the Crown’s position that because I found that one of the firearms that was used in the Moyo robbery was a handgun, andsince all handguns are restricted firearms by definition, that Mr. Rose is subject to a minimum sentence of five years pursuant to section344(a) (

i) of the Criminal Code as a first offence. [13] As an officer of the court, Mr. Herscovitch advised me that the 2005 conviction on Mr. Rose’s record counts as an earlieroffence pursuant to section 344(2)(

b) and would make the Moyo robbery a second offence and subject Mr. Rose to a seven yearminimum sentence pursuant to

section 344(a)(ii) of the Criminal Code.. He relies however, on section 727(1) of the Code whichprovides that the Crown has to give notice before an accused pleads if the Crown seeks to rely on an increased penalty. There is nodispute that this was not done in this case. He submits, therefore, that the minimum sentence is still five years as submitted by theCrown. [14] In support of his position Mr. Herscovitch referred me to a decision of Justice Kenneth Campbell; R. v. Cody Duhamel, 2013ONSC 1340, at para. 32. In that case, where the Crown had failed to give the notice required under section 727(1) of the Code, the courtfound that by operation of that

section of the Code, no greater punishment shall be imposed on the offender by reason of the previousconviction. [15] Ms. Rokach did not challenge Mr. Herscovitch’s position. Accordingly, I find that the minimum sentence in this case is fiveyears. Positions of Crown and Defence [16] Ms. Rokach submitted that Mr. Rose should be sentenced to a ten year sentence that should be consecutive to the sentence heis currently serving as a result of the sentencing decision of Justice Harvison Young made on November 9, 2012, when Justice HarvisonYoung sentenced Mr. Rose to six and a half years in custody.

She gave him two years for pre-trial credit resulting in an additional fourand a half years for him to serve. That sentence is not under appeal. Ms. Rokach admitted that since her position would result in a totalsentence of 16½ years for the two robberies, that this “may be too high” but suggested that I could adjust the total sentence to what Iconsider appropriate based on the totality principle. She conceded however that this would not permit me to sentence Mr. Rose to lessthan the minimum sentence of five years for the Moyo robbery.

She did not suggest what in her view would be a fit sentence in this case. [17] The position of Mr. Herscovitch is that Mr. Rose should be sentenced to six years to begin on the day this sentencecommences and that this sentence should be concurrent to the sentence he is currently serving. Mr. Herscovitch advised me that Mr.Rose has served about four months of the sentence imposed by Harvison Young J. and that if Mr. Rose is sentenced to six years for theMoyo robbery, to run concurrent to this other sentence, the total effective sentence would be eight years and four months. It is agreedthat Mr.

Rose has no credit for pre-trial custody in this matter as all of his time in custody has been attributed to the other conviction. [18] The rationale for Mr. Herscovitch’s position is that Mr. Rose’s sentence should be in line with the sentence Mr. Nwogureceived when he pleaded guilty in the Provincial Court before Justice Otter to the Moyo and Thorncliffe robberies and one otherrobbery that Mr. Rose did not participate in, based on the principle of parity. There had been no joint submission agreed to; the Crownasked for a ten year sentence for Mr. Nwogu and Otter J. sentenced him to eight years. Mr.

Herscovitch recognizes that when comparingwhat Mr. Rose’s sentence should be to Mr. Nwogu’s, there is a very significant mitigating factor that applied to Mr. Nwogu that does notapply to Mr. Rose, namely the fact that he pled guilty. Mr. Nwogu and Mr. James however, pled guilty to both the Thorncliffe and Moyorobberies as having been committed with a firearm and it was on this basis that they were sentenced. Mr. Rose however, was not found tohave used a firearm in the Thorncliffe robbery, only an imitation firearm. In the Moyo robbery he was found to be a party, not aprincipal, to a robbery with a firearm. Mr.

Herscovitch submitted that the benefit that Mr. Nwogu received from pleading guilty is alsooffset by the fact that he was found guilty of a third robbery that was very serious that Mr. Rose was not involved in. [19] Ms. Rokach referred to R. v. Morrissey, 2000 SCC 39 , [2000] 2 S.C.R. 90 at para. 75 and submitted that becauseMr. Rose has related convictions namely two other robbery convictions, clearly the mandatory minimum would not reflect the necessarydenunciation and deterrence required in this case. Mr. Herscovitch did not disagree with this submission. Analysis

a) The Case Law [20] Mr. Rokach provided a number of cases in support of her position. Mr. Herscovitch provided a couple of additional cases butstated that he agreed with the principles of law in the Crown’s authorities. He argues however, that many of the cases are distinguishableand in any event support his position that the Crown’s position is too harsh. [21] In support of Ms. Rokach’s position that the sentence should be imposed consecutively, she relies on the decision of R. v. Li,[2009] B.C.J. No. 340 (BCCA) at para. 16. Mr. Herscovitch relies on R. v. W.Q., (ON CA), [2006] O.J. No 2491(Ont.

C.A.), where the court referred to a passage from Clayton Ruby’s text, Sentencing, Sixth Edition, with approval. At para. 11 ofW.Q. the court adopts another passage from the Ruby text for the proposition that the tests for determining whether a sentence should beconsecutive or concurrent are very flexible and it becomes a fact specific inquiry whether the connection between two offences issufficiently or insufficiently close to merit either consecutive or concurrent sentences. [22] Mr. Herscovitch accepted that legally Mr.

Rose could be sentenced to a sentence to run consecutively or concurrently butsubmitted that a consecutive sentence would be too harsh. He suggested that even a minimum five year consecutive sentence would be

too harsh. A five year sentence would clearly be inappropriate in any event as he conceded Mr. Rose was not eligible for the minimumsentence. For these reasons, Mr. Herscovitch submitted that the only appropriate sentence is one that runs concurrently to Mr. Rose’sother sentence and that the length of this new sentence could then reflect both convictions. [23] Mr. Herscovitch also referred me to R. v. Thai, [2010] O.J. No. 548 (Ont. C.A.). In that case the offender was convicted inHamilton of four counts of robbery using a firearm. He was the ringleader of a series of gang-related home invasions.

He was sentencedto 14 years imprisonment. He was then convicted in Brampton for another robbery where the trial judge imposed a 12 year sentence tobe served concurrently to his other sentence. The offender successfully appealed the Hamilton sentence which was reduced to ten years.As a result, the Brampton sentence was also reduced so it would end at the same time. The Court of Appeal’s reasoning was that thiswould accord with the intention of the trial judge in the Brampton matter that he did not want to extend the overall sentence of theoffender beyond the time to be served on the Hamilton sentence.

The Court of Appeal implicitly agreed with the trial judge that aconcurrent sentence was the correct approach for that case. As Mr. Herscovitch also noted, in the Thai case the offender had no recordbefore the Hamilton convictions and received overall, a ten year sentence for four home invasions with firearms. [24] On this issue I also found the decision of Justice Nordheimer in R. v. Stoddart, [2005] O.J.

No. 6076 (S.C.J.) to be helpful.Nordheimer J. was sentencing an offender who had been convicted of one count of committing a robbery with a firearm and one count ofhaving his face masked with intent to commit an indictable offence. The Crown had asked for a sentence of between six and eight yearsconsecutive to the sentence that the offender was currently serving. The position of the Defence was that a sentence in the range of fourto six years was more appropriate and that it should be concurrent to the existing sentence.

Justice Nordheimer noted that the minimumsentence in that case was four years and because of various aggravating factors concluded that the range of sentence suggested by theCrown was the appropriate range of sentence. He stated that he seriously considered whether the sentence to be imposed ought to bemade consecutive to the sentence that was imposed on an earlier robbery conviction. They were separate and distinct offences committedat different times and he cited R. v. Chisholm, (ON CA), [1965] 4 C.C.C. 289 (Ont. C.A.).

In that case the point wasmade that if consecutive sentences are not imposed in such circumstances it might operate as an inducement to individuals not to refrainfrom committing other crimes closely related in time.

Justice Nordheimer concluded that consecutive sentences would therefore beappropriate, subject to the principle of totality. [25] However, the offender in Stoddart had been sentenced to five years on the earlier robbery conviction and, as JusticeNordheimer noted, had he acceded to the Crown’s request it would have resulted in a total sentence in the range of 11-13 years, which heconsidered to be unduly long in light of the various authorities from the Court of Appeal that he had been referred to.

He thereforeconcluded, at para. 11, that the sentences on the offences before him must be concurrent to the existing sentence the offender wasserving in order to avoid an otherwise harsh result. [26] I will not set out all of the reasons why, in this case, a consecutive sentence might be appropriate because I agree with Ms.Rokach that there is some merit in that position. However, in my view it is not an answer to suggest that the total sentence could beadjusted to what is an appropriate sentence using the totality principle. The cases relied upon by Mr.

Herscovitch and others I will cometo make it clear that ordering that sentences run concurrently is certainly appropriate in these circumstances. In my view this isparticularly so where there is a minimum sentence as there is in this case, as that could be an impediment to ordering what wouldotherwise be a fit sentence if the sentence is to run consecutively.

In my view it is preferable in these circumstances to consider the otherconviction as an aggravating factor and impose a sentence fit for the offence before the court which will run concurrent to the othersentence. [27] As for the range of sentence proposed by Ms. Rokach, although the cases that she relies upon are of some assistance, all butone involve home invasions or robbery of banks or convenience stores, with or without firearms. Although all robberies involving the useof a firearm are very serious, a home invasion, because it occurs in someone’s home is arguably more serious.

The same can be said ofrobbing a bank or a convenience store using a firearm as that puts potentially many people at risk. [28] I agree with Ms. Rokach’s submission that the robbery of Mr. Moyo was essentially an interrupted carjacking and so the caseof Justice Clark of R. v. Noor, [2007] O.J. No. 4092 (S.C.J.) is the closest on the facts in terms of the seriousness of the offence,although it is somewhat dated.

Justice Clark held that a carjacking is a serious type of robbery in that: The average person enjoys a degree of privacy and, more importantly, feels a sense of security while travelling in his or her motorcar, asopposed to walking or using public transport. Although not so sacrosanct as the expectation to be secure in one’s home, as the excerptfrom the cases that follow make plain, the expectation to be able to travel about the community in safety in one’s own vehicle isrecognized as a fundamental value of Canadian society.

This value is something to be assiduously fostered and protected. (at para. 22) [29] In Noor no gun was actually produced. Mr. Noor’s accomplice had threatened the victim stating that he had a gun and wouldshoot if he failed to surrender his car. Justice Clark found there was a reasonable doubt that the person who got into the passenger seatand did nothing was Mr. Noor. He found however, that for sentencing purposes this was a matter of no consequence given the jointnature of the enterprise. He referred to R. v. DaSilva, [2002] O.J. No. 4695 (Ont.

C.A.) at para. 4 where the court held that the facts inthat case demonstrated a joint venture throughout and that each accused was equally culpable for the offences for which they werejointly charged and as such identical sentences were warranted. He sentenced Mr. Noor to three and one half years. This case wasdecided before the mandatory minimum sentences for this offence were legislated. [30] In R. v. Price, (ON CA), [2000] O.J. No. 886 (Ont.

C.A.) the Court of Appeal found that the trial judge haderred in the view that both offenders should be treated identically insofar as sentence was concerned and found that the principle of paritywas violated. The court concluded that the trial judge erred given the disparity between the criminal records of the two, and the differentroles that they played in the robbery.

Although the appellant had played a significant role in the planning of the robbery, the court notedhe was not directly involved in the assaultive behaviour and threats of bodily harm which, according to the victim impact statements,traumatized those present in the store at the time of the robbery. There was no evidence that the appellant either countenanced orenvisaged the violence that occurred. (at para. 55) [31] In R. v. Gagne, [1998] O.J. No. 2267 (Ont. C.A.), the Court of Appeal upheld the sentencing decision of the trial judge who

sentenced the offender to ten years. The court noted at para. 8 that having regard to the nature of the offence including armed andmasked robbers at a time and in a location that exposed many people to the risk of serious harm and given the offender’s criminal record,including a number of convictions for weapons and property offences, the sentence was within the appropriate range and should not bedisturbed. The trial judge in that case had found that although no shots had been fired the victim suffered similar consequences in termsof psychological damage; [1996] O.J. No. 3839 at para. 4. [32] In R. v.

Slater, [2008] O.J. No. 4519 aff’d [2010] O.J. No. 376 (Ont. C.A.), Thorburn J. referred to R. v. Gill, [2004] O.J. No.3368 (S.C.J.) where the court noted the range of sentence was between eight and ten years. In Gill the offender robbed a bank of $2,500,did not use a weapon, although he said that he had a gun, and there was no injury to anyone. The offender was a heroin addict with alengthy criminal record including seven prior robberies. [33] In R. v. Mearow, [2006] O.J. No. 4025 (Ont.

C.A.) the issue on the sentence appeal was whether or not the 18 month disparitybetween the sentences imposed on two offenders was appropriate. The court stated that the offender who received the lower sentence hadpleaded guilty and offered substantial assistance to the police in the investigation of the offence and was therefore entitled to a significantreduction in the sentence that would ordinarily be imposed.

The court noted that even if the other offender was merely the getaway driverhis culpability was significant, in that he had helped plan the robbery, participated in stealing the car used in the robbery and assisted inobtaining the gun and ammunition. However, although the offender had 49 criminal convictions and had robbed a convenience store witha firearm, he was only given a six year sentence. [34] Ms. Rokach also referred me to R. v. Chappell, 2012 PECA 10 , [2012] P.E.I.J.

No. 18 (PEI CA) where at para. 140the court held that keeping all of the sentencing principles in perspective, when sentences are meted out for participation in the sameoffence and are compared it is not necessary that they be equal because sentencing is an individualized process having regard to all theprinciples of sentencing. In that case the Court of Appeal disagreed with the trial judge that a guilty plea would reduce the normal rangeof sentence by a mathematical calculation of one-quarter to one-third but held that it was a significant mitigating factor for sentence.

Thecourt found that this was one of the facts, along with the fact the sentences proposed were part of a joint submission, that justified thedisparity in sentences the other offenders received as compared to the appellant who was sentenced to seven and one half years. Theappellant’s criminal record included various convictions for assault, none with a weapon, but no prior conviction for robbery. [35] I have also reviewed the cases specifically referred to by Nordheimer J. in Stoddart. In R. v. Richards, (ON CA), [2001] O.J. No. 2286 (Ont.

C.A.) the sentence for two counts of robbery with a weapon involving an appliance store and agovernment office was reduced to a total of six years. R. v. Matthews, [2002] O.J. No. 670 (Ont. C.A.) is similar to the case at bar in thatthe offender pled guilty to charges of robbery and several other charges and received a global sentence of seven years which was madeconsecutive to a four year sentence he was already serving where he had pleaded guilty to one count of robbery and one count of robberywith a firearm.

The Court of Appeal found that there was no reason why the offender should be sentenced to four years longer than hisco-accused and so the four year sentence was varied to run concurrently to his other sentence. Although I must still consider the fact thatunlike Mr. Nwogu, Mr. Rose did not plead guilty to this offence or the convictions entered by Harvison Young J., this case does supportmy decision to order that this sentence run concurrently and Mr. Herscovitch’s submission that the position of the Crown is undulyharsh.

b) The Sentences Given to Mr. Nwogu and Mr. James [36] The sentences given to Mr. Nwogu and Mr. James by Otter J. are an important consideration to ensure there is parity betweenthe sentence I impose on Mr. Rose as compared to his accomplices. [37] I was provided with a transcript of the proceedings before Mr. Justice Otter on May 25, 2010 when the sentencing of Mr.Nwogu and Mr. James was dealt with. It appears that the pleas had been taken earlier as Otter J. began by setting out the agreed facts ashe understood them. Mr. Nwogu and Mr.

James pled guilty to three robberies, two of which were with a firearm, namely the Moyo andThorncliffe robberies. Mr. James also pled guilty to an additional charge of possession of the firearm. He was 21, had no criminal recordand was sentenced to six years. Mr. Nwogu had a criminal record for two convictions in 2005 which are the same convictions Mr. Rosehas; Mr. Herscovitch advised that they committed the 2005 offences together. Mr. Nwogu received the same sentence for the 2005robbery and use of imitation firearm as Mr. Rose did. He was paroled a couple of months later than Mr.

Rose. [38] Justice Otter reviewed the facts of the Moyo robbery as I understand them save he had been told that it was Mr. Rose whostuck a silver handgun into Mr. Moyo’s stomach and demanded his keys as Mr. Nwogu and Mr. James approached. That is contrary tomy findings but the point is that Mr. Nwogu and Mr.

James were sentenced on the basis that a firearm was used in this way. [39] Justice Otter also reviewed the facts of the Thorncliffe robbery as I understand them from the decision of Harvison Young J.save that she found that the robbery was committed with an imitation firearm because she had a reasonable doubt about whether or notthe firearm was real. The victim was at home with friends watching movies. He heard a knock on the door. When he opened the doorMs. Webster was there and Messrs Rose, James and Nwogu rushed in.

One of the accused was armed with a handgun which was held atthe one of the victim’s neck and he was ordered to the floor and told to cooperate or he’d be shot. Some of the accused heated a tableknife in the kitchen and threatened that the victims would be burned if they didn’t cooperate. The accused searched everyone removingcash and bank cards. The victims were forced to provide PIN numbers by repeated threats although they did not provide actual numbersso there was no actual money lost. The house was ransacked for valuables. Four hundred dollars in cash and bank cards and jewelry wastaken.

The victims were taken to the bedroom and several were held in the bedroom closet. No one was injured. [40] The third robbery, which was not with a firearm, was on June 30, 2009 (the “June robbery”) and this was another homeinvasion committed by Mr. James and Mr. Nwogu. In that case Mr. James and Mr. Nwogu were the lookouts for a robbery of a womanwho was in her home. None of the accused inside had produced a firearm and a quantity of $400 in cash and jewelry was taken. Thevictim suffered soreness to her throat area. [41] The minimum sentence for Mr. James was five years and for Mr. Nwogu, seven years.

They both filed evidence on thesentencing hearing which, according to Justice Otter, showed that they seemed to be leading a two-part life, one that would be viewed by

the public at large and society in general as highly commendable and then the more secretive side exposed by virtue of the convictionsbefore the court. The Crown sought a ten year custodial sentence for each Mr. James and Mr. Nwogu. [42] Mr. James was 21 years old with no prior criminal record. He filed five letters of reference and a positive pre-sentence reportand Otter J. found his prospects for rehabilitation to be positive. As for Mr.

Nwogu, Justice Otter noted that his probation officer gavenothing but glowing reports of the substantial progress he had made with schooling, with entrepreneurial activities in the community, andthat he was showing great initiative and unbelievable work ethic. He was on a “bright, shining path to putting behind him his previousconviction”. Mr.

Herscovitch provided a copy of a document describing the Future Stars non-profit organization which providesmentoring programs for high school youth in the Greater Toronto Area which was one of the documents that Justice Otter relied upon incoming to such a positive view of Mr. Nwogu. [43] Justice Otter considered the sanctity of the home and the significance of the two robberies involving home invasions. Heconsidered the aggravating aspect of robbery with a firearm and commented on the fact that planning went into these robberies.

Hecommented on the victim impact statements, particularly that of the grandmother from the June robbery, who psychologically haddifficulty just remaining at home. He also considered the threats used in these robberies as aggravating factors. Justice Otter consideredthe early plea by both defendants which was made some point early on in the preliminary inquiry which had started but had not beencompleted. He felt this reflected a “not insignificant degree of remorse” by both of the defendants.

Otter J. noted that in “stark reality tothe gravity of these offences, one must be sharply contrasted with the character of both these young …individuals.” He considered thatthe offences were all part of a spree and that he would impose a global sentence, not consecutive sentences. [44] Both men had served ten months of pre-trial custody and no issue was taken that they deserved a credit of 20 months. Otter J.sentenced Mr. James to six years with credit for the 20 months; a further four years and four months. With respect to Mr. Nwogu, OtterJ. noted that he warranted more than the minimum for the second offence.

He concluded the appropriate sentence would be eight yearswhich, after credit for pre-trial custody, was six years and four months further to serve.

c) The Aggravating and Mitigating Factors [45] The aggravating factors in this case include the seriousness of the offence, particularly with the use of a firearm, the degree ofplanning, the impact on Mr. Moyo; particularly the emotional and financial impact, and the fact that the Moyo robbery was part of, asJustice Otter put it, a spree. Although I was not satisfied that Mr. Rose made it to the Moyo robbery he was clearly trying to get there inorder to participate and he was integral to the planning. He never intended just to be a getaway driver. However, like the facts found inPrice, although Mr.

Rose played a significant role in the planning of the robbery, he was not directly involved in the assaultive behaviourand threats of bodily harm which traumatized Mr. Moyo and there was no evidence that he either countenanced or envisaged the violencethat occurred. I therefore find that his culpability for the Moyo robbery is less than Mr. Nwogu’s although still significant. The fact Mr.Rose has an earlier conviction in 2005 for an armed robbery, albeit with an imitation firearm, is also an aggravating factor. [46] Why Mr.

Rose has been involved with armed robberies recently is a mystery that probably only he can answer but his crimesmust have been motivated by greed as there are no substance abuse or other problems that could account for them. He suggested only alack of maturity. Furthermore, as Ms. Rokach submitted, these offences did not represent only one small dark spot in Mr. Rose’s past,given his conviction in 2005. [47] As for mitigating factors, the most significant is Mr. Rose’s otherwise exemplary character as set out in the many glowingletters filed on his behalf.

He is clearly a man of many talents who is capable of leading a very productive life if he chooses to do so. Iwould think that the prospects for rehabilitation are good. [48] Mr. Rose did not plead guilty and as Mr. Herscovitch submitted, the defences he raised in both trials were serious and, to someextent, successful. In any event, he cannot be punished for insisting on his right to a trial; this is a neutral factor. Mr. Rose did expressremorse for his actions when he spoke to me directly.

d) Determination of a Fit Sentence [49] In this case, given the seriousness of the offence and the fact a firearm was used, denunciation and deterrence, both generaland specific, must be paramount considerations. That said, there is a reasonable prospect of rehabilitation of Mr. Rose and so thesentence I impose should take that into account as his successful rehabilitation would be in the best interest of him, his family andsociety at large. [50] In determining a fit sentence there are a number of issues to resolve.

I have already set out my reasons for why the sentence Iimpose in this case should be served concurrently to Mr. Rose’s sentence for the Thorncliffe robbery. [51] Considering only the length of sentence Ms. Rokach is seeking, it is her position that this third robbery conviction shoulddraw a longer sentence than the one imposed by Justice Harvison Young, relying on the step principle. Mr. Herscovitch disagreed andsubmitted that when considering Mr.

Rose’s criminal record, I must consider his record at the time he committed the Moyo offence atwhich time his only previous convictions were the robbery convictions in 2005. Mr. Herscovitch also submitted that the timing of thetrials was up to the Crown and was not something done by design by the Defence which was not disputed by Ms. Rokach. He submittedon this basis that the step principle is not applicable. [52] The problem with the Crown’s submission is that the conviction and sentence on the Thorncliffe robbery was imposed afterthe Moyo robbery occurred.

In fact the Moyo robbery was six days earlier than the Thorncliffe robbery. The position taken by Ms.Rokach is contrary to the Coke principle or (Lord) Coke’s Rule as it is also known, which was the subject of comment by the SupremeCourt of Canada in R. v. Skolnick, (SCC), [1982] 2 S.C.R. 47.

The rationale of the rule, as I understand it, is that anoffender is not liable to an increased penalty as a result of the prior convictions because, at the time of the offence in question, he had notin effect been put on notice by the imposition of a prior sentence, that the conduct in issue would be regarded more seriously because ofthe prior conviction and sentence. It is expected that the “conviction and penalty for the initial offence and the peril of a more severe

penalty for a subsequent offence will be present in the mind of the offender and guide his future conduct.”; Skolnick, supra, at p. 5, citingwith approval R. v. Cheetham (1980), (ON CA), 53 C.C.C. (2d) 109 at p. 114. [53] This principle was applied by Justice Nordheimer in his rejection of the step principle in Stoddart where at para. 12 he held,relying on Skolnick, “[t]he rationale for the application of the step principle is absent when the person has not had the effect of the earliersentence to deter his conduct.” [54] For these reasons, I accept the position of Mr.

Herscovitch that the step principle does not apply in this case. That said, I donot agree that Mr. Rose in effect gets “one free pass” for the Thorncliffe robbery. The fact he participated in the Thorncliffe robbery isrelevant and although counsel made no specific submissions on this point, it seems to me that both robberies are relevant as they reflectanother side to Mr. Rose’s character and assist me in determining to what extent society requires protection from him and his prospectsof rehabilitation. [55] Turning then to the question of the length of sentence, the position of Ms.

Rokach that ten years is appropriate is too high inmy view, given that the step principle does not apply. It is difficult to discern a range for sentence for a robbery of this nature which isserious but not at the level of an armed home invasion or bank robbery. I note that ten years is the highest sentence in all of the casesprovided by Ms. Rokach. [56] Mr. Herscovitch conceded that the Moyo robbery was a very serious offence but as I have said, as compared to Mr. Nwoguwho both planned and was present at that robbery, where violence was used against Mr. Moyo, the fact Mr.

Rose was not involved in theactual robbery which involved striking Mr. Moyo with a firearm is a significant difference. However, he was integral to the planning ofthe robbery and knew a firearm would be brought so in my view he is nearly as culpable as Mr. Nwogu. Arguably the Moyo robbery issomewhat less serious than the offence dealt with by Justice Harvison Young, which was a home invasion which is a statutoryaggravating factor. In that robbery Mr. Rose and his accomplices brandished what Justice Harvison Young found appeared to be afirearm.

It was only because she was not satisfied it was a real firearm that she found it was an imitation firearm. The victims believed itwas real as did Mr. Moyo in this case. Certainly the facts relied upon by Otter J. as set out above were very serious. The fact I found thegun used was real of course is still significant. [57] In my view, an effective sentence of eight years and four months, as proposed by Mr. Herscovitch, is more in line with thecase law. I note that if I had acceded to the Crown’s request and considered the totality principle, this sentence would not be possiblegiven the mandatory minimum.

Even a five year sentence, added to the sentence remaining to be served on the Thorncliffe robbery,would be just over nine years. [58] Given the principle of parity, and given all the circumstances of this case and the circumstances of Mr. Rose, including hisparticipation in the Thorncliffe robbery, I agree with the position taken by Mr. Herscovitch that Mr. Rose should serve a sentence that iscomparable to the sentence imposed on Mr. Nwogu. I agree with the sentence he has proposed which results in a sentence for Mr. Rosethat is somewhat e higher. Although Mr. Rose does not get the significant benefit Mr.

Nwogu received from an early guilty plea foreither robbery, he did not participate in the earlier June 2009 robbery, which was a very serious home invasion. Furthermore, the factsfound by Justice Harvison Young and by me with respect to the Thorncliffe and Moyo robberies were less serious than those admitted byMr. Nwogu before Otter J. In addition the fact the Moyo robbery was first in time is a factor. It is also significant that apart from the Junerobbery, the criminal record of Mr. Nwogu and Mr. Rose is identical. These differences which favour lowering Mr. Rose’s sentence ascompared to Mr.

Nwogu’s are comparable to the significant deduction Mr. Nwogu likely received for his guilty pleas. As for theoffenders themselves, it seems they both lead a double life and have good prospects for rehabilitation. [59] For all of these reasons, I find that the appropriate and fit sentence in this case is an effective sentence of eight years and fourmonths that would result in Mr. Rose serving a sentence just a little longer than the sentence imposed by Justice Otter on Mr. Nwogu. Ihave decided that this sentence should be served concurrently to the sentence imposed by Justice Harvison Young.

Subject to commentsfrom counsel if mathematically I have made an error, as I understand it, to achieve this result, the sentence to be imposed for the Moyorobbery should be six years, as proposed by Mr. Herscovitch, to start today. [60] The Crown also seeks a DNA order as this is a primary designated offence and a

section 109 order for life. There was nodispute with respect to these ancillary orders and so those shall be made. Disposition [61] Mr. Rose would you please stand. [62] On your conviction as a party to one count of robbery while armed with a handgun contrary to

section 344 of the CriminalCode, I sentence you to six years of incarceration to be served concurrently to the sentence you are serving as a result of the decision ofJustice Harvison Young. That sentence will start today. [63] There will be a DNA order in Form 5.03 pursuant to

section 487.051 as robbery is a primary designated offence, authorizingthe taking of a DNA sample. [64] There will also be a mandatory weapons prohibition order pursuant to section 109(1)(

a) of the Criminal Code for life. SPIES J. Released: March 20, 2013

CITATION : R. v. Rose, 2013 ONSC 1587 COURT FILE NO.: 3-442/10 DATE: 20130320 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – AUNDRE ROSE Defendant REASONS FOR SENTENCE SPIES J. Released: March 20, 2013